High Court · 2025

CRL MP(MD) NO. 7360 of 2024BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02-04-2025CORAMTHE HONOURABLE MR JUSTICE B.PUGALENDHICRL MP(MD) NO. 7360 of 2024in CRL A(MD)No.356 of 2024Joseph JeyaseelanS/o.Vedhamuthu, Middle Street, Kodai Road, Dindigul District. Now confined at Central Prison, Madurai. Petitioner(s) VsThe Inspector of PoliceAll women Police station, Nilakottai, Dindigul District. Respondent(s) For Petitioner(s): Mr.G.KaruppasamypandiyanFor Respondent(s): Mr.A.S.Abulkalam AzadGovernment AdvocateORDERThe petitioner was prosecuted by the respondent police that he hasmisbehaved with his daughter who was aged about 10 years. The case wasregistered at the instance of the petitioner's wife/PW1 in Crime.No.1 of 2023 and afinal report was also filed against him and the same was tried in Spl.S.C.No.261 of2023, on the file of the learned Special Court (POCSO Act Cases) Dindigul. The trialCourt found him guilty for the offence under Section 6 of the POCSO Act and1/7 https://www.mhc.tn.gov.in/judis CRL MP(MD) NO. 7360 of 2024convicted and sentenced him to undergo 20 years of rigorous imprisonment with afine of Rs.2,000/-, and in default, to undergo 12 months of simple imprisonment. 2. As against the conviction and sentence imposed by the trial Court, thispetitioner has filed a Criminal Appeal in Crl.A(MD)No.356 of 2024 and the same hasbeen admitted by this Court. The petitioner has also moved this application tosuspend the sentence imposed on him by the trial Court. 3. The learned counsel for the petitioner submits that this petitioner is an armyman. When he was in army, the petitioner's wife/PW1 had developed an illicitintimacy with her sister's husband and therefore, there was a dispute between thehusband and the wife. 4. According to the learned counsel for the petitioner, the petitioner is havingthree children. Two children were living with him and one child was living thepetitioner's wife/PW1. These two children who are living with the petitioner arealso permitted to stay along with the petitioner's wife/PW1 in the weekend. Thepetitioner's wife/PW1 has lodged a complaint as if that this petitioner has attempteda sexual assault on one of the daughters/victim on 19.02.2023 at about 03.00 am. 5. Admittedly, the other child was also staying along with the victim child atthe time of occurrence. However, the other child who was sleeping along with thevictim child was not at all examined by the prosecution. The entire prosecution was2/7 https://www.mhc.tn.gov.in/judis CRL MP(MD) NO. 7360 of 2024relied on the statement of the petitioner's wife/PW1 and the victim child. Thepetitioner counsel has projected the case of the prosecution that it is an attempt tomake the petitioner's wife/PW1 as a guardian for the property which he has alreadygifted in favour of the children. Since there was a misunderstanding between thepetitioner and his wife both were living separately. The petitioner has also gifted aprime property at Nilakottai in favour of the three children and appointed hissister's son as the custodian of the property. Aggrieved over that, the petitioner'swife/PW1 was creating problem with the petitioner and this complaint has beenfoisted with the help of the child in order to put him under threat and coercion toget the properties in favour of her. 6. The learned counsel for the petitioner by referring the complaint submitsthat the complaint was lodged for the alleged occurrence said to have taken place on19.02.2023. Even as per prosecution case, the children were taken by the defactocomplainant for the weekends viz., saturday and sunday and would be dropped onmonday. The petitioner's wife/PW1 has also admitted in her evidence that thechildren were dropped in the house of the petitioner only on 19.02.2023, whereas thealleged occurrence is said to have taken place at about 3.00 am in the morning on19.02.2023. Therefore, according to him, the very veracity of the complaint isdoubtful.3/7 https://www.mhc.tn.gov.in/judis CRL MP(MD) NO. 7360 of 20247. The learned counsel for the petitioner has also pointed out that the incidentis said to have taken place on 19.02.2023 and the complaint was lodged on06.03.2023. The prosecution has also projected that the victim girl was producedbefore the Doctor PW11 on 06.03.2022, itself. This has also been contradicted by theevidence of the doctor that the victim girl was examined only on 08.03.2023. He alsosubmits that this petitioner is in jail right from the date of arrest from 06.03.2023.8. The learned Government Advocate for the respondent submits that thedoctor who examined the victim child has noted that the hymen has been ruptured.The victim girl has narrated in the statement recovered under Section 164 of CrPCand also evidence as to the manner in which occurrence has taken place andtherefore, according to the learned Government Advocate for the respondent, theprosecution has substantially proved the case that this petitioner is the person whoabused his own daughter and he is not entitled for suspension of sentence. 9. This Court considered the rival submissions made and perused thematerials available on record.10. Admittedly, there is a dispute between the petitioner and his wife and thewife is living separately. Two children were living with the petitioner and one childwith the defacto complainant. As per the evidence of the petitioner's wife/PW1, thechild was returned to the house of the petitioner only on 19.02.2023 by evening. The4/7 https://www.mhc.tn.gov.in/judis CRL MP(MD) NO. 7360 of 2024alleged offence happened to be on 19.02.2023 and the victim was handed over to thepetitioner on 19.02.2023. The another child was also staying along with the victim inthe house of the petitioner at the relevant point of time. The non-examination of theother child who was present along with victim at the time of occurrence is a materialdefect which has to be considered only at the time of final dismissal. 11. The petitioner has raised certain arguable points, which can be consideredonly during the final hearing of the appeal. However the appeal could not be takenup for final hearing for want of time. Considering the points raised by the petitioner,his period of incarceration and for the reasons that the appeal could not be taken upimmediately, this Court is inclined to allow this petition and accordingly thesentence imposed by the trial Court as against the petitioner is suspended pendingthis appeal with certain conditions:- i.The petitioners shall furnish two sureties for a sum ofRs.50,000/- each for a like sum to the satisfaction of the learned(*)Special Court for POCSO Act Cases, Dindigul; ii.The petitioner shall file an affidavit that he will not disturb thevictim child and the defacto complainant. iii.The petitioner shall stay at Coimbatore and report before theInspector of Police, Katoor Police Station, Coimbatore daily at5/7 https://www.mhc.tn.gov.in/judis CRL MP(MD) NO. 7360 of 202410.30 am until further orders. sd/- 02/04/2025(*)Corrected as per order of this Hon’ble Court inCRL MP(MD).7360/2024 in CRL A(MD).356/2024 Dated 15/04/2025 / TRUE COPY / 16/04/2025 Sub-Assistant Registrar ( C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023. rgmTo1. The Special Court (POCSO Act Cases),Dindigul.2 The Special Judge cum Chief Judicial Magistrate, Thanjavur at Kumbakonam; 3. The Inspector of PoliceAll women Police station, Nilakottai, Dindigul district. 4. The Central Prison,Madurai.5. The Inspector of Police,Katoor Police Station,Coimbatore. 6/7 https://www.mhc.tn.gov.in/judis CRL MP(MD) NO. 7360 of 20246. The Additional Public Prosecutor,Madurai Bench of Madras High Court, Madurai.+1 CC to M/s.G.KARUPPASAMY PANDIYAN, Advocate ( SR-3856[I] dated03/04/2025 ) ORDER IN CRL MP(MD) NO. 7360 of 2024inCRL A(MD)No.356 of 2024 Date :02/04/2025MK/SAR /03.04.2025 7P/8C RS/SAR /16.04.2025 7P/8C Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023 7/7